Third Party Petitions as a Means of Protecting Voluntarily Isolated Indigenous Peoples

• Author: Nickolas M. Boecher
• Position: J.D. candidate, May 2012, at American University Washington College of Law
• Pages: 58-58

58FALL 2009

THIRD PARTY PETITIONS AS A MEANS OF

PROTECTING VOLUNTARILY ISOLATED

INDIGENOUS PEOPLES

by Nickolas M. Boecher*

*Nickolas M. Boecher is a J.D. candidate, May 2012, at American University

Washington College of Law.

There are more than one hundred isolated indig enous

groups worldwide with more than half living in Peru

and B razil.1 Loggers, colonists, and oil companies are

encroaching on the lands of these groups, which are at an addi-

tional risk of extinction fr om diseases to which they have no

immunity.2 A procedural element o f the Inter-American Com-

mission on Human Rights allowing the entry of petitions by third

parties may provide an important means to ensure the future pro-

tection of these groups, their culture, and the forests they inhabit.

Oil and gas development in the western Amazon may soon

increase r apidly.3 These blocks overlap some of the most bio-

logically diverse regions on the planet that are still inhabited by

native indigenous group s, many of which are voluntarily iso-

lated.4 The combination of oil, primary rain forest, and isolated

indigenous groups is a recipe for disaster.

A line of decisions from the Inter-American human rights

system recog nizing indigenous prop erty rights offers hope.

The Inter-American Commission on Human Rights (“Commis-

sion”) is a human rights body that exercises jurisdiction to hear

contentious human rights cases over al l Member State s of the

Organization of the Ameri can States (“OAS” ).5 The Commis-

sion can submit a ca se to the Inter-American Court of Human

Rights (“Court”) if t he offending state has rati f‌ied the Ameri-

can Conv ention on Human Rights and has explicitly accepted

the Court’s jurisdiction.6 The States encompassing the western

Amazon - Brazil, Peru, Ecuador, Colombia and Bolivia - have

all done so.7

In The Ma yagna (Sumo) Awas Tingni Community v. Nica-

ragua,8 the Court ordered Nicaragua to grant property rights to

the Awas Tingi people who faced threats of logging o n their

ancestral lands.9 T his landmark case re cognized the rights of

indigenous groups to the land that they inhabit based on their

need to sustain themselves and their culture.10 With this prec-

edent, the Court has simultaneously permitted other indigenous

groups to establish their rights to property, and p resented a

potential solution to the problem of environmental degradation

in the Amazon.

Indigenous cultures have lived with the Amazon forest for

millennia, and its composition is a result of their active manage-

ment.11 The UN has recognized the importance o f indigenous

culture and its ability to contribute to sustainable development.12

Since Awas Tingni, o ther cont acted indi genous gro ups have

succeeded in asserting indigenous property rights before th e

Court.13 Studies have demonstrated that contacted tribes rapidly

acquire mod ern technologies an d after a single generation ca n

drastically move away from the lifestyle s that maintained their

population in closer balance with the surrounding environment.14

The Co mmission permits third parties to submit petitions

on behalf of an injured party if the actual injured party is unable

to submit a petition for itself.15 Concerned parties have submit-

ted petitio ns in favor of isolated group s and have successfully

elicited precautionary measures from the Commission in their

favor.16 This procedural mechanism provides a means to simul-

taneously protect indigenous groups, their culture, and the for-

ests they inhabit.

There are also challenges to the establishment of indigenous

property rights for isolated groups, many associated with effec-

tive representation. First, it may be diff‌icult to determine the true

interests of isolated groups. Second, self-interested parties could

enter a petition in the name of an isolated group to advance their

own interests. Similarly, there is a risk that third party petition-

ers will not be zealous advocates. Finally, there are often severe

diff‌icultie s in gathering evidence documenting human rights

abuses of silent victims in remote regions.

Further, Inter-Am erican Court p recedent, while promis-

ing, also poses problems. The Court ha s limite d indige nous

land rights to the traditional use of the territory, therefore, state

parties c an still grant concessions for the extraction of natural

resources after consultation with the affected group.17 Addition-

ally, the Court has permitted state parties to m ake the ultimate

determination of which lands are returned to indigenous groups

after cons ultation with them. 18 These rulings are incompatible

with the nature of isolated groups, which face extinction on con-

tact with foreign diseases, are not available for consultation, and

live an itinerant lifestyle irrespective of established boundaries.

A possible solution includes referencing neighboring co n-

tacted groups as a proxy for the interests of uncontacted groups,

as well as for a source of information about where traditional

territories lie. Additionally, n atural boundari es such as rivers

or settlements of contacted groups can assist in delimiting land

rights. If similar solutions are not implemented soon, it could be

to the detriment of the rights of isolated groups, their culture, and

the f orests they inhabit. Any future Court decision, th erefore,

must be tailored to the groups’ unique and compelling situation.

Endnotes: Third Party Petitions as a Means of Protecting Voluntarily

Isolated Indigenous Peoples continued on page 89